Property law tries to serve values of

Fee Simple

1. 
   History of FS
   
   1. 
      When landlord subinfeudated, tenant received possession and use for his life on the condition that he provide certain services
      
   2. 
      When died, land reverted and lord had discretion about whether to give to heir
      
   3. 
      Rise of inheritability
      
      1. 
         Lord usually provided land to heir b/c knew the family and received tax (relief)
         
      2. 
         1100- Henry V required that heirs be able to assume tenancies by paying a relief and lords imitated
         
      3. 
         1200 – inheritance of fee became matter of right
         
      4. 
         Rule of primogenitur – male heirs preferred to female heirs.
         
   4. 
      Rise of alienability
      
      1. 
         Initially 2 restrictions on alienability
         
         1. 
            Rights of lord - concerned about tenants transferring interest
            
            1. 
               If substituted new tenant, lord risked getting unreliable tenant
               
            2. 
               Didn’t want tenants to subimpudate – tenant added new layer in feudal chain – greater likelihood that obligations not met
               
            3. 
               1290- Statute Quia Emptores settled that the fee was freely alienable – the holder could transfer w/o consent of the lord – but it prohibited subimpudation (compromise leg.)
               
         2. 
            Rights of heirs (people who inherit when land passes under laws of intestate succession)
            
            1. 
               Right to alienate also potentially right to disinherit – heirs wouldn’t receive land that they anticipated receiving
               
            2. 
               Some gained b/c could soften harsh effects of primogeniture – could transfer to younger sons during lifetime
               
            3. 
               1200- heirs apparent could still block tenant from selling land
               
               1. 
                  If land transferred to A and his heirs and A transferred to B, then upon A’s death, reverted to heirs (A thought to have life estate)
                  
            4. 
               D’Arundel’s Case – established that in a transfer to A and his heirs, heirs had no right to recover lands alienated by a tenant during his lifetime – received when A died unless he transferred
               
   5. 
      Rise of devisability (ability of a tenant to pass the estate by will)
      
      1. 
         1540- Statute of Wills made it possible to devise legal estates by will
         
         1. 
            Even b/f Statute of Wills, some exceptions:
            
            1. 
               Could devise equitable estates
               
            2. 
               Could use “use” (trust) – mechanism for landowners to avoid primogeniture and avoid paying incidences
               
         2. 
            Interrel. b/w S/Wills (1540) and S/Uses (1536) – attempt to mollify landowners
            
   6. 
      Applicable theories: Economic Story (Demsetz) - Applicable if value of land increases or cost decreases
      
      1. 
         Incentive to invest in land
         
      2. 
         Coincided with rise of market economy
         
      3. 
         Increasing land scarcity – might have prompted an increase in the value of the resource – might have induced alienability and created a greater incentive to try to capture the benefits of that alienation
         
      4. 
         After Quia Emptores, land consolidated in few hands
         

2. 
   Creation of FSA
   
   1. 
      Intervivos conveyance
      
      1. 
         At early common law
         
         1. 
            To convey FSA, conveyance had to be to “A and his heirs”
            
            1. 
               “to A” - words of purchase – indicate who takes FSA
               
            2. 
               “and his heirs” words of limitation – define duration of the estate
               
         2. 
            Intervivos conveyance to “A, successors and assigns forever in fee simple”
            
            1. 
               No FSA transferred - A has a life estate, successors and assigns not have anything – failed words of limitation
               
         3. 
            From the 13^th century on, “and his heirs” meant that conveyance was a fee simple – did not take in their own right
            
            1. 
               So, transfer to “d and his heirs,” D has a fee simple (present interest) and heirs have no rights
               
      2. 
         After 1540
         
         1. 
            Didn’t need “and his heirs” to transfer FS in a will – any clear expression of intent to transfer a FSA was enough
            
            1. 
               If no intent shown, then CL would presume a life estate was being transferred
               
      3. 
         Modern View
         
         1. 
            Presumption that person intended to convey FSA unless there are indications that intends to give lesser estate
            
   2. 
      By Devise
      
      1. 
         Before 1540, devises not recognized
         
      2. 
         S/Wills (1540) allowed an estate in land to be devised
         
3. 
   Characteristics of FSA
   
   1. 
      Represents the greatest possible aggregation of rts, powers, priv. and imm. a person may have in land
      
      1. 
         Holder doesn’t share ownership in time with anyone
         
      2. 
         Has the rt. to possess for the longest duration in the CL
         
   2. 
      Of a potentially infinite duration
      
      1. 
         Comes to end only if owner dies w/o a will and w/o heirs  escheats to state
         
   3. 
      Generally inheritable
      
      1. 
         If owner of FSA dies intestate, FSA passes to heirs
         
      2. 
         Holder of FSA can’t place limitations of inheritability of FSA – can’t create new interest that would restrict who obtains if dies intestate
         
   4. 
      Can convey by intervivos conveyance and by devise
      
      1. 
         Freely devisable and transferable (govt. can restrict transfers by law)
         
      2. 
         Living people don’t have heirs – just heirs apparent
         
      3. 
         If a person has died and trying to figure out heirs
         
         1. 
            Under laws of primogeniture
            
            1. 
               estate passed to decedents (children/grandchildren) – oldest son took priority
               
            2. 
               If w/o decedents, then closest collateral relatives- brothers, nephews
               
            3. 
               Deceased’ ancestors (parents) couldn’t inherit
               
         2. 
            Under modern law, intestate succession rules set by states
            
            1. 
               If no surviving spouse, then designated as intestate successor of some share
               
            2. 
               If no surviving spouse or not take entire estate, passes to decedents
               
            3. 
               If no decedents, some states permit antecedents (parents, grandparents)
               
            4. 
               If no antecedents, collateral
               
            5. 
               If no collateral, escheats to state
               

1. 
   Examples
   
   1. 
      O conveys Greenacre “to A and her heirs.” A’s only child, B, is a spendthrift and runs up large, unpaid bills. B’s creditors can attach B’s property to satisfy their claims.
      
      1. 
         Does B have an interest in Greenacre, reachable by B’s creditors? Suppose A wishes to sell Greenacre and use the proceeds to take a trip around the world. Can B prevent A from doing this?
         
         1. 
            No – “and her heirs” are only words of limitation; A has FSA and heirs have mere expectancy but no legal future interest.
            
   2. 
      O, owner of Blackacre, has two children, A (daughter) and B (son). Subsequently B dies testate, devising all his property to W, his wife. B is survived by three children, B1 (daughter), B2 (son) and B3 (daughter). A1 (son) is born to A. Then O dies intestate.
      
      1. 
         Who owns Blackacre in 1800?
         
      2. 
         Law of primogeniture  B2 takes by representation (oldest son)
         
      3. 
         Under modern American law?
         
         1. 
            A gets ½, 3 kids share the remaining ½ (W doesn’t inherit b/c you can’t transfer expectant property)
            
   3. 
      O conveys Blackacre “to A for life, remainder to B and her heirs.” B then dies intestate w/o heirs. A then dies. Who owns Blackacre?
      
      1. 
         A has a life estate, B has vested remainder in FSA at time of conveyance
         
      2. 
         Property escheats to the state – O had transferred entire interest
         

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